Urban Law Annual ; Journal of Urban and Contemporary Law

Volume 18

January 1980

State Ownership in the Marginal Sea Around theChannel Islands National Monument

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Recommended CitationState Ownership in the Marginal Sea Around the Channel Islands National Monument, 18 Urb. L. Ann. 313 (1980)Available at: https://openscholarship.wustl.edu/law_urbanlaw/vol18/iss1/11

STATE OWNERSHIP IN THE MARGINAL SEAAROUND THE CHANNEL ISLANDS NATIONAL

MONUMENT

Congress enacted the Submerged Lands Act (SLA) of 19531 to endgrowing disagreement over ownership of the mineral-rich lands2 be-neath United States coastal waters.3 Under the SLA, the states pos-sess ownership rights4 to the submerged land which extends threemiles' into the ocean,6 excepting land occupied by the federal gov-

I. 43 U.S.C. §§ 1301-1315 (1970). See Overfelt, Submerged Lands Act of 1953-In Retrospect, 24 U. KAN. CITY L. REV. 208 (1955-56).

2 Comment, Constitutional Law: Does National Sovereignty Encompass FederalProvretor;' Rights on the Marginal Sea?, 28 U. FLA. L. REV. 231 (1975). Oil is theprimary resource in offshore submerged land. In 1953, a Congressional committeeconsidered a geological survey estimate of 15.156 billion barrels to be the total UnitedStates offshore oil reserves. H.R. MIN. REP. ON H.R. REP. No. 4198, 83d Cong., IstSess. (1953), reprinted in [1953] U.S. CODE CONG. & AD. NEWS 1464, 1465. Reliable1968 estimates of potentially recoverable crude oil in the Outer Continental Shelfindicated 165 billion barrels, or about II times the 1953 estimates. U.S. DEP'T OF THEINTERIOR, TECH. BULL. No. 5, THE ROLE OF THE PETROLEUM AND NATURAL GASFROM THE OUTER SHELF IN THE NATIONAL SUPPLY OF PETROLEUM AND NATURALGAS 49 (1970).

3. See H.R. REP. No. 1778, 83d Cong., 1st Sess., reprinted in [1953] U.S. CODECONG. & AD. NEWS 1415, 1420 (chronicles in detail the disagreement).

4. The SLA provides in part:It is determined and declared to be in the public interest that (1) title to andownership of the lands beneath navigable waters within the boundaries of therespective States, and the natural resources within such lands and waters, and (2)the right and power to manage, administer, lease, develop, and use the said landsand natural resources all in accordance with applicable State law be. . .vestedin . . . the respective States ...

43 U.S.C. § 131 l(a) (1976). Section 131 l(d), however, provides that nothing in theSLA "shall affect the use, development, improvement, or control by or under theconstitutional authority of the United States of said lands and waters for the purposesof navigation or flood control or the production of power. .43 U.S.C. § 131 1(d)(1976).

5. "One English, statute, or land mile equals approximately .87 geographical,marine, or nautical miles. The conventional 'three-mile limit' under international lawrefers to three geographical miles, or approximately 3.45 land miles." United States

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ernment under a claim of right.7 Instead of resolving the ownershipcontroversy, the SLA has ignited a series of disputes between thestates and the federal government.' In the most recent suit, UnitedStates v. Calfornia,9 the Supreme Court uncharacteristically ex-panded state ownership rights by rejecting the federal government'sclaim of right' ° to an area of submerged land off the California coast.

v. California, 381 U.S. 139, 148 n.8 (1965). Unless otherwise indicated in this Com-ment, "mile" refers to a geographic mile.

6. 43 U.S.C. § 1301(b) (1970). This provision allowed Gulf coast states an oppor-tunity to establish historic boundaries that extend up to 10 miles from their shore-lines. Only Texas and Florida, however, qualify for this extension. See notes 54-59and accompanying text infra.

7. 43 U.S.C. § 1313(a) (1976). The provision states in part that the Act does notapply to "any rights the United States has in lands presently and actually occupied bythe United States under claim of right."

8. United States v. Maine, 420 U.S. 515 (1975) (the federal government, ratherthan the Atlantic coast states, controls the submerged land beyond the three-milezone); United States v. Louisiana, 394 U.S. 1 (1969) (the boundary line of Texas mustbe measured from the state's modern, rather than historic, coastline); United States v.Louisiana, 389 U.S. 155 (1967) (artificial jetties can not be considered a part of theshoreline from which to measure the three-mile limit); United States v. California,381 U.S. 139 (1965) (the court defined inland waters, a term necessary to determinewhere a state's coastline ends); United States v. Louisiana, 363 U.S. 1 (1960) (Texas,but not Louisiana, Mississippi, or Alabama, qualifies for a boundary extension be-yond three miles).

9. 436 U.S. 32 (1978). This case is the most recent stage of ongoing litigationbetween the United States and the State of California. The first action took place inUnited States v. California, 332 U.S. 19 (1947). For a discussion of this decision, seenotes 35-41 and accompanying text infra. The court entered a decree for the 1947decision in the same year, 332 U.S. 804 (1947). The court rendered a second decisionin 1965, 381 U.S. 139, and a supplemental decree to the decision in 1966, 382 U.S.448. For a discussion of the 1965 decision, see notes 65-69 and accompanying textinfra. The court entered a second supplemental decree in 1977, 432 U.S. 40, to clarifythe boundary lines off the California coast. A third supplemental decree affirmed theCourt's decision in the 1978 case. See 439 U.S. 30 (1978).

All cases arose under the Supreme Court's original jurisdiction. "In all Cases...in which a State shall be a Party, the supreme Court shall have original Jurisdiction."U.S. CONsT. art. 3, § 2, cl. 2. In each decree the Supreme Court reserved jurisdictionto enter such further orders as may from time to time be deemed advisable or neces-sary to give full force and effect to the decree. California initiated the present suitunder the 1966 reservation of jurisdiction. The 1966 decree provided in part:

As to any portion of such boundary line or of any areas claimed to have beenreserved under § 5 of the Submerged Lands Act as to which the parties may beunable to agree, either party may apply to the Court at any time for entry of afurther supplemental decree.

382 U.S. at 453.10. See notes 76-81 and accompanying text infra.

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A 1938 Presidential Proclamation" t designated two islands'2 off theCalifornia coast as the Channel Islands National Monument. 13 TheProclamation's purpose was to preserve unusual fossil formationsand other objects of geologic interest located on the islands.' 4 Thediscovery of rare and endangered marine life' 5 prompted a secondPresidential Proclamation in 194916 which expanded the Monument

11. Presidential Proclamation No. 2281, 3 Fed. Reg. 827 (1938). FranklinRoosevelt "reserved from all forms of appropriation under the public-land laws"most of the land on two islands, Santa Barbara and Anacapa. He set aside portions ofthe islands for continued lighthouse purposes. The area reserved for the nationalmonument is about 538 acres on Anacapa Island and about 581 acres on Santa Bar-bara Island. Id

Federal title to the islands can be traced to the Treaty of Guadalupe Hidalgo, 9Stat. 922 (1848). Mexico ceded to the United States the islands lying off the coast ofCalifornia, along with the adjacent mainland. When the United States admitted Cali-lornia to the Union in 1850, the federal government retained control over the islands.See An Act for the Admission of the State of California into the Union, 9 Stat. 452(1850). See generalr Bowman, The Question of Sovereignty over Caiffornia's Off-Shore Islands, 31 PAC. Hist. REV. 291 (1962) (Bowman discusses whether the federalgovernment does hold the lawful title to the islands).

12 The islands, Santa Barbara and Anacapa, are located about 15 miles off theCalifornia coast, just south of Los Angeles. NAT'L GEOGRAPHIC ATLAS OF THEWORLD 38 (1975). The three-mile limit still applies to these islands, however, becausethe Supreme Court held in the 1965 California case that California owns the watersand submerged land within three miles of each of the many islands off the coast. 381U.S at 177.

13. The Antiquities Act of 1906 authorizes the President to reserve lands "ownedand controlled by the Government of the United States" for use as national monu-ments 16 U.S.C. § 431 (1976). The Act provides in part:

The President of the United States is authorized, in his discretion, to declare bypublic proclamation historic landmarks, historic and prehistoric structures, andother objects of histonc and scientific interest that are situated upon the landsowned or controlled by the Government of the United States to be national mon-uments, and may reserve as a part thereof parcels of land, the limits of which inall cases shall be confined to the smallest area compatible with the proper careand management of the objects to be protected.

16 U S.C, §431 (1976).14. The Proclamation states that the islands contain "fossils of Pleistocene ele-

phants and ancient trees, and furnish noteworthy examples of ancient volcanism, dep-osition, and active sea erosion, and have situated thereon various other objects ofgeological and scientific interest." Presidential Proclamation No, 2281, 3 Fed. Reg.827 (1938).

15. The surrounding waters contain endangered sea otters, sea elephants, and furseals Memorandum from Victor Cahalene, Representative of the National ParkWildlife Service, to Ben Thompson, Fish and Wildlife Service (Jan. 30, 1941).

16 Presidential Proclamation No. 2825, 3 C.F.R. 17 (Supp. 1949). PresidentHarry Truman proclaimed that "the areas within one nautical mile of Anacapa andSanta Barbara Island. . .are withdrawn from all forms of appropriation under the

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to include the waters and submerged land within one mile of the is-lands. 7 The California case arose after the United States interferedwith California's efforts to lease to commercial fishermen the rights toharvest kelp'" found abundantly within the one-mile area.' 9 Thefederal government invoked its long-standing policy of denying po-tentially harmful intruders, especially kelp fishermen, access to thearea.2' The United States argued that under the 1949 Proclamation it

public-land laws and added to and reserved as a part of the Channel Islands NationalMonument." Id The parties in the 1978 Caifornia decision devoted a considerableportion of their briefs to a discussion of what the President intended when he used theword "areas" in the Proclamation. Rather than resolve this controversy, the SupremeCourt assumed that even if "areas" included the submerged land, California stillowns the one-mile belts. 436 U.S. at 37.

17. Although the Antiquities Act only refers to "lands," the Supreme Court recog-nizes that it now authorizes the President to reserve waters located on or over anyfederally owned land. 436 U.S. at 36 n.9. See Cappaert v. United States, 426 U.S.128 (1975) (the Antiquities Act authorizes the President to reserve an undergroundpool since that pool and its inhabitants are "objects of historic and scientific interest"within the meaning of the Act); United States v. Oregon, 295 U.S. 1 (1934) (an Execu-tive Order setting aside a non-navigable lake on public domain as a bird sanctuarywas within the President's authority).

As early as 1941, the federal government emphasized the need to enlarge the monu-ment. Early drafts of the Proclamation acknowledged an intent to protect the waters'marine life. The federal government deleted such references, however, when GeorgeT. Washington, the Assistant Attorney General, expressed doubts about whether theAntiquities Act permitted the establishment or the enlargement of a national monu-ment to protect plant and marine life. Letter from George T. Washington to the At-torney General (Jan. 28, 1949).

18. Kelp refers to a mass or growth of large brown seaweeds. WEBSTER'S THIRDNEW INTERNATIONAL DICTIONARY 1236 (14th ed. 1966). Giant kelp known asMacrocystis grow in the waters along portions of the California coast. Fishermenharvest them for various substances, including algin, a chemical used for several com-mercial purposes. 436 U.S. at 35 n.8. See Zahl, A/gae: The Lffe-Givers, 145 NAT'LGEOGRAPHIC 361 (1974); North, Giant Kelp, Sequoias of the Sea, 142 NAT'L GEO-GRAPHIC 251 (1972).

19. The original drafters of the SLA noted that in 1945 commercial fishermenharvested 37,542 tons of kelp under state leases. H.R. REP. No. 1778, 83d Cong., 1stSess., reprintedin [1953] U.S. CODE CONG. & AD. NEWS 1415, 1435. The Departmentof Agriculture remarked in 1911 that "the giant kelp beds of the Pacific coast are...a national asset of first importance." S. Doc. No. 190, 62d Cong., 2d Sess., reprintedin [1953] U.S. CODE CONG. & AD. NEws 1415, 1435.

20. In 1950, the acting regional director for the National Parks Service, whoseduties included supervision of the islands, noted the potential problem with kelpfishermen. Letter from C. Persons, acting regional director, to Superintendent, Se-quoia and Kings Canyon (July 20, 1950). The acting director remarked that "the kelpbeds are essential for wildlife protection and should not be disturbed." Id Sincethen, other officials of the National Parks Service have made similar remarks. JointAppendix at 78-82, United States v. California, 436 U.S. 32 (1978).

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should control the one-mile belts.2 Rejecting this position, the Courtconcluded that since the disputed area fell within the SLA's three-mile zone,22 Congress intended that California own the waters andsubmerged land.23

The SLA is the outgrowth of early cases2 4 where the Supreme

21. 436 U.S. at 39-40.22. See note 12 supra.23. 436 U.S. at 41.24. The first case was Martin v. Waddell's Lessee, 41 U.S. (16 Pet.) 367 (1842)

(alter the Revolution, the people of each state became themselves sovereign, therebypossessing the absolute right to all their navigable waters and soils under the waters).The most notable case, however, is Pollard's Lessee v. Hagan, 44 U.S. (3 How.) 212(1845). The Court held that title to Alabama's tidelands belonged to Alabama. TheCourt decided that the federal government held the title to the land in public trustuntil the territory gained statehood. A state entering the Union retained most of thesovereign rights it possessed before entering the Union, including title to the tide-lands. Id at 229.

In several other cases, the Supreme Court followed the general holding of Pollard'sLessee. See, e.g., United States v. Utah, 283 U.S. 64 (1931) (title to the beds of navi-gable rivers passed to Utah when it entered the Union); Appleby v. City of New York,271 U.S. 364 (1926) (after the Revolution, the Crown's proprietary rights in tidewatersvested in the original states); Oklahoma v. Texas, 258 U.S. 574 (1922) (upon creationof a state, ownership of beds of navigable streams within the state passes from theUnited States to that state); Port of Seattle v. Oregon & Washington R.R., 255 U.S. 56(1921) (the navigable waters in the State of Washington and the lands under thempassed to Washington when it joined the Union); The Abby Dodge, 223 U.S. 166(1912) (Congress has no control over sponges growing on land beneath tidewaterswithin a state's jurisdiction); United States v. Mission Rock Co., 189 U.S. 391 (1903)(California, when admitted to the Union, received full ownership rights to the soilsunder its navigable tidewaters); Mobile Transp. Co. v. Mobile, 187 U.S. 479 (1903)(the court reaffirmed that Alabama, when admitted to the Union, became entitled tothe soil under the navigable waters below the high-water mark); St. Anthony FallsWater Power Co. v. St. Paul Water Comm'rs, 168 U.S. 349 (1897) (the rights of ariparian owner of land situated on the Mississippi River are to be measured by therules and decisions of the court located within that state); Shively v. Bowlby, 152 U.S.1 (1893) (the original 13 states possess the ownership rights to tidewaters previouslyheld by England); Illinois Cent. R.R., v. Illinois, 146 U.S. 387 (1892) (it is settled lawthat the state owns the submerged land within the limits of that state); Hardin v.Jordan, 140 U.S. 371 (1891) (the extent of a state's prerogative over its submergedland depends on the laws of that state); Manchester v. Massachusetts, 139 U.S. 240(1891) (a state may define the boundaries of its submerged land within the generallyrecognized territorial limits of that state); McCready v. Virginia, 94 U.S. 391 (1876)(each state owns the beds of all tidewaters within its jurisdiction); Weber v. Board ofHarbor Comm'rs, 85 U.S. (18 Wall.) 57 (1873) (California has absolute propertyrights in and sovereignty over all soils under tidewaters within the state's limits);Mumford v. Wardwell, 73 U.S. (6 Wall.) 423 (1867) (when the Revolution took place,the people of each state became themselves sovereign, thereby holding the absoluteright to all their navigable waters and soils under them); Smith v. Maryland, 59 U.S.

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Court has held that the original thirteen states own their navigableinland waters 5 and submerged land. All states, including California,now enjoy similar rights.26 None of these early decisions 7 involveddisputes over ownership rights to the marginal sea (the area withinthree miles of the coastline).2 8 Nevertheless, legal commentatorsnoted that the cases supported a widespread belief that state owner-ship extended three miles into the ocean.29 Not until 193730 did the

(18 How.) 71 (1855) (the soil below the low-water mark in the Chesapeake Bay,within the boundaries of Maryland, belongs to Maryland); Den v. Jersey Co., 56 U.S.(15 How.) 426 (1853) (the soil under the public navigable waters of East New Jerseybelongs to that state); Goodtitle v. Kibbe, 50 U.S. (9 How.) 471 (1850) (Congresscannot grant the lands under Alabama's navigable rivers to anyone, since Alabamaretains sovereignty over the area).

25. Inland waters are those over which a state may exercise sovereignty as if thewaters were part of the land mass, such as rivers and bays. Taylor, The SettlementBetween Federal and State Governments Concerning Offshore Petroleum Resources:4ccommodation or .4djudication? I 1 HARV. INT'L L.J. 358, 359 (1970).

26. The equal-footing doctrine allows states, besides the original 13, to join theUnion with all the rights and privileges enjoyed by the original states. Equalityamong the original states was first recognized in the Ordinance for the Government ofthe Territory of the United States Northwest of the River Ohio, passed by the Con-gress of the Confederation, 1787, readopted by Ist Cong., 1st Sess., I Stat. 51 (1789).The equal-footing statute extending these rights to California is An Act for the Ad-mission of the State of California into the Union, 9 Stat. 452 (1850).

See Weber v. Board of Harbor Comm'rs, 85 U.S. (18 Wall.) 57 (1873) (upon admis-sion of California into the Union under the equal-footing doctrine, sovereignty overall soils under tidewaters within the state's boundaries passed to California). See alsoBorax Consol., Ltd. v. Los Angeles, 296 U.S. 10 (1935) (the federal government re-served the soils under tidelands within the original states for those respective states.New states admitted to the Union receive the same type of sovereignty to the landswithin their borders as the original 13 states enjoyed); United States v. Oregon, 295U.S. 1 (1935) (when a state joins the Union, the United States' title to lands underly-ing navigable waters within the state passes to that state). See generally Comment,Equal Footing and the Marginal Sea, 19 U. KAN. CITY L. REV. 66 (1951).

27. See S. MiN. REP. No. 133, 83d Cong., 1st Sess., reprinted in [1953] U.S. CODECONG. & AD. NEws 1534, 1619 (remarks of Phillip B. Perlman, then Solicitor Gen-eral of the United States) (the holding of Pollard's Lessee does not apply to sub-merged land in the marginal sea).

28. The three-mile zone often is referred to as the marginal or the territorial sea.See 29 U. CIN. L. REV. 510, 511 n.8 (1960).

29. See Hanna, The Submerged Land Cases, 3 BAYLOR L. REV. 201, 209 (1951);Metcalfe, The Tidelands Controversy: 4 Study in Development of a Political-LegalProblem, 4 SYRACUSE L. REV. 39,41 (1952-1953). In 1953, a Congressional report onthe submerged lands controversy concluded in part that between 1842 and 1935 morethan 30 Supreme Court decisions announced the principle that the states owned thesoils under all navigable waters, regardless of whether the waters were inland. H.R.REP. No. 1778, 83d Cong., 1st Sess., reprinted in [1953] U.S. CODE CONG. & AD.NEws 1415, 1438. While many scholars held this belief, there was evidence to support

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United States first contest state ownership of the marginal sea. Thediscovery of enormous deposits of oil, minerals, and other naturalresources aroused the government's economic interest in preventingforeign exploitation.3' President Harry Truman issued two Procla-mations 2 calling for exclusive United States control over the watersand submerged land extending to the outer edge of the ContinentalShelf." Despite such federal claims, the states maintained that they

the government's position. Secretary of State Thomas Jefferson, in a note to the Brit-ish Ambassador to the United States, advanced the first official American claim for athree-mile zone. Letter from Thomas Jefferson to the British Ambassador (1793),H R. EXEC. Doc. No. 324, 42d Cong., 2d Sess. 553, 553-554 (1872).

30. Senator Nye introduced Senate Bill 2164, which called for United States con-trol over the marginal sea. S. 2164, 75th Cong., 1st Sess., Hearings before the HouseComm. on the Judiciari on SJ Res. 208, 75th Cong., 3d Sess. 5 (1938). The federalgovernment, while recognizing state ownership of tidelands and lands beneath navi-gable waters. claimed title to submerged lands lying seaward of the coastline. Id

31 The discovery of oil in the submerged land beneath the Santa Barbara Chan-nel occured in 1894. Unsophisticated drilling techniques, however, prevented the ex-traction of any oil until the 1920's. Metcalfe, The Tidelands Controversy: A Study inDevelopment qf a Political-Legal Problem, 4 SYRACUSE L. REV. 39 (1952-1953). SeeHearings before Subcomm. 4 of the Comm. on the Judiciary on H.J. Res. 181, 76thCong. Ist Sess. 50 (1939).

32 Presidential Proclamation No. 2668, 3 C.F.R. 68 (1943-1948 Compilation);Exec Order No. 9634, 3 C.F.R. 437 (1943-1948 Compilation) accompanied this Proc-lamation, Presidential Proclamation No. 2667, 3 C.F.R. 67 (1943-1948 Compilation);Exec Order No. 9633, 3 C.F.R. 437 (1943-1948 Compilation) accompanied this Proc-lamation. Proclamation No. 2667 asserted United States' jurisdiction and controlover the natural resources in the Continental Shelf contiguous to the United States. Itsought to conserve the shelf resources, to protect the United States from foreign ex-ploitation of the resources, and to promote domestic development among UnitedStates industries in offshore mining. The Executive Order accompanying the Procla-mation stated that the President was not attempting to affect "the determination bylegislation or judicial decree of any issues between the United States and the severalstates, relating to the ownership or control of the subsoil and sea bed of the Continen-tal Shelf within or outside the three-mile limit." Exec. Order No. 9633. ProclamationNo. 2668 announced the United States' right to establish conservation zones for theprotection of fisheries in certain areas of the high seas contiguous to the United States.These zones were areas where fishing had been or would be maintained in large scale.See Hollick, US Oceans Policy: The Truman Proclamations, 17 VA. J. INT'L L. 23(1976)

33 The Continental Shelf refers to those slightly submerged portions of the conti-nents that surround all the continental areas of the earth. The outer edge of the shelfends when the slope of the sea floor increases sharply. An abrupt drop in depth usu-ally occurs when the water reaches 100 fathoms (600 feet). The total area of the Con-tinental Shelf off the United States, excluding Alaska and Hawaii, is about 290,000square miles. H.R. REP. No. 215, 83d Cong., 1st Sess., reprinted in [1953] U.S. CODECoN(i & AD. NEws 1385, 1390.

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possessed ownership rights to the marginal sea.3 4

In 1947, the conflict culminated in United States v. California,31 thefirst in a series of disputes between the federal government and theState of California. 36 For the first time, the Supreme Court ad-dressed the issue of whether the marginal sea belonged to the individ-ual states or to the United States.37 The dispute arose becauseCalifornia had authorized through leases the extraction in the margi-nal sea of petroleum, gas, and other mineral deposits. 38 Objecting tothis offshore program, the United States brought suit.39 The Court

34. The conflicting claims caused those favoring and those opposing state owner-ship to introduce several bills in Congress, but none of them became law. During the79th Congress (1945-46), legislators brought 19 joint resolutions, all favoring stateownership, before Congress. These proposals granted to the states a three-mile zoneof submerged land off their coastlines. The government did retain, however, owner-ship in those lands it had acquired previously by purchase, condemnation, and dona-tion. One bill passed the House, H.R.J. 225, 79th Cong., 2d Sess. (1946), but wasvetoed by President Harry Truman. 92 CONG. REC. 10660 (1946). The House failedto override his veto. 92 CONG. REC. 10745 (1946). Between 1937 and 1939, legislatorsproposed a large number of bills that attempted to declare the lands seaward of thelow water mark to be part of the United States' public domain. See Metcalfe, TheTidelands Controversy: A Study in Development of a Political-Legal Problem, 4 SYRA-CUSE L. REV. 39, 41 (1952-53).

35. 332 U.S. 19 (1947). For a general background of the disputes leading up tothis decision, see Note, Conflicting State and Federal Claims of Title in SubmergedLands of the Continental She#f, 56 YALE L.J. 356 (1947).

36. See note 9 supra.37. 332 U.S. at 23.38. California received large sums in rents and royalties for these leases. 332 U.S.

at 23. The court noted that the discovery of oil off the coast prompted the state to passlaws authorizing California residents to prospect for oil and gas on blocks off its coast.Id at 38.

39. The United States obviously desired control over these valuable resources.The federal government also argued that federal dominion was necessary to protectthe country against dangers to security and tranquility of its citizens, and that theUnited States has a responsibility to handle diplomatic relations. 332 U.S. at 29.These arguments greatly resemble the concern expressed by President FranklinRoosevelt in his two 1945 Proclamations.

California argued that its original constitution, adopted in 1849 before the state wasadmitted to the Union, included within its state boundaries the water area extendingthree English miles into the ocean. Id See CAL. CONST. art. 12, § 1. Since theUnited States admitted California into the Union on an equal footing with otherstates, 9 Stat. 452 (1850), California argued its ownership followed from Martin andPollard's Lessee. The court rejected this position, particularly the application of Pol-lard's Lessee and Martin. 332 U.S. at 32-33.

California claimed three English miles; the United States claimed three marine(3A5 English) miles. The court held that the United States possessed paramountrights in the area extending three marine miles from the coastline. Id at 39.

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held that the federal government possessed "paramount rights in andfull dominion and power over" the submerged land within threemiles of the California coastline.4" The majority opinion emphasizedthat the international importance of the area dictated federal con-trol.4 The Court subsequently expanded its newly created para-mount rights doctrine in United States v. Louisiana42 and UnitedStates v. Texas43 by rejecting state-proclaimed boundaries which ex-tended beyond the marginal sea. The Court concluded that the fed-eral government's paramount rights applied to all submerged landseaward of a state's coastline. 44

The SLA, passed six years later, overturned the 1947 Caiforniadecision45 by granting coastal states ownership rights to the marginal

40. 332 U.S. 804, 805 (1947) (the first decree). The court held in part:The United States of America is now, and has been at all times pertinent hereto,possessed of paramount rights in, and full dominion and power over, the lands,minerals and other things underlying the Pacific Ocean seaward of the ordinarylow water mark on the coast of California and outside of the inland waters, ex-tending seaward three nautical miles and bounded on the north and south, re-spectively, by the northern and southern boundaries of the State of California.The State of California has no title interest thereof or property interest therein.

Id at 805. The Court did not state that title to the disputed area vested in the UnitedStates. However, then Attorney General Clark expressed in 1953 the view that para-mount rights and full dominion signified a title interest potentially greater than a feesimple. H.R. REP. No. 1778, 83d Cong., Ist Sess., reprinted in [1953] U.S. CODECONG. & AD. NEWS 1415, 1419-20.

41. 332 U.S. at 35. The Court stated that "[t]he very oil about which the state andnation contend here might become the subject of international dispute and settle-ment." Id

42. 339 U.S. 699 (1950). Louisiana argued that under a state statute it owned thewater extending 27 miles beyond the coastline. Id at 701. Applying the 1947 Califor-nia reasoning, the Court held that since the United States owns the marginal sea, theocean beyond the marginal sea, which is an equally important international concern,must also be within the national dominion. Id at 704.

43. 339 U.S. 707 (1950). Texas argued that under Texas law its boundary ex-tended nine miles from the coastline. Texas had an unusual claim to an extendedboundary because the state entered the Union not as a former territory of the UnitedStates, but as an independent nation. The Court held that "as an incident to thetransfer of that sovereignty any claim that Texas may have had to the marginal seawas relinquished to the United States." Id at 718.

44. 339 U.S. at 720.45. The 1947 California decision upset many legislators. The states had exercised

dominion over submerged lands for nearly 150 years. Thus, they felt that equitableprinciples called for Congress to give to the states what they traditionally werethought to have: ownership rights to the marginal sea. 99 CONG. REC. 4361 (1953)(remarks of Sen. Hollard). The stated purpose of the SLA, however, shows that Con-gress did not ignore the federal government's interests. The purpose was in part

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sea.46 Congress allowed Gulf coast states an opportunity to establishhistoric boundaries47 extending up to three leagues48 from theircoastlines. The United States, however, retains control over the Con-tinental Shelf.49 The Act specifically states that it does not apply toareas in the marginal sea occupied by the federal government under aclaim of right or a title interest. 50

Since passage of the SLA, no court has expressly considered the"claim of right" provision. Numerous decisions since 1953, though,show that the Supreme Court, interpreting related provisions of the

to confirm and establish the titles of the states to lands beneath navigable waterswithin State boundaries and to the natural resources within such lands and wa-ters, to provide for the use and control of said lands and resources, and to con-firm the jurisdiction and control of the United States over the natural resourcesof the seabed of the Continental Shelf seaward of state boundaries.

Submerged Lands Act, Pub. L. No. 31, ch. 65, § 1, 67 Stat. 29 (1953).46. 43 U.S.C. § 1311(a) (1976). Many legislators strongly expressed a desire to

quickly pass the SLA. They worried that the United States would need oil for theKorean War. Since state ownership of offshore oil wells already was established, leg-islators thought it would be more expeditious to maintain state control. H.R. REP.No. 215, 83d Cong., Ist Sess., reprintedin [1953] U.S. CODE CONG. & AD. NEWS 1385,1386. Legislators did not act in undue haste, however. Congress examined 40 bills onsubmerged lands, 6,000 pages of testimony and exhibits in at least 14 formal hearingsbefore passing the SLA. H.R. REP. No. 215, 83d Cong., 1st Sess., reprinted in [1953]U.S. CODE CONG. & AD. NEWS 1385, 1385.

47. An historic boundary is the boundary of any Gulf coast state as such bound-ary existed when the state joined the Union. 43 U.S.C. § 1301(a)(2) (1976). See notes52-59 and accompanying text infra.

48. Three leagues equals about nine marine, nautical or geographic miles, or ap-proximately 10 land, statute, or English miles. 363 U.S. at 9 n.6 (1960).

49. 43 U.S.C. § 1332(a) (1976). Sections 1331-1343 of the Outer Continental ShelfLands Act relates to submerged land in the outer Continental Shelf. President HarryTruman's 1945 Proclamation No. 2667 foreshadowed enactment of §§ 1331-1343.While the Proclamation referred only to control over the "national resources" of theContinental Shelf contiguous to the United States, Presidential Proclamation No.2667, 3 C.F.R. 67, 67 (1943-1948 Compilation), the SLA refers to the entirety of thesubsoil and the seabed. 43 U.S.C. § 1332(a) (1976). Congress decided that the UnitedStates may lease the outer Continental Shelf to private enterprise for the extraction ofoil, gas, and other valuable mineral deposits. 43 U.S.C. §§ 1334-1337 (1976). Seegenerally Stone, Some Aspects 0/Jurisdiction over Natural Resources under the OceanFloor, 3 NAT. RESOURCES LAW. 155 (1970).

50. 43 U.S.C. § 1313(a) (1976). Congress excepted from operation of the SLAlands to which the United States held lawful title, including lands acquired by emi-nent domain proceedings, purchase, cession, and gift; and lands retained by or cededto the United States when the state entered the Union. Congress also excepted fromoperation of the SLA "any rights the United States has in lands presently and actuallyoccupied by the United States under claim of right." Id

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Act, has subtly returned to the United States some of the rights ini-tially thought to be surrendered. 5 In United States v. Louisiana,52

and United States v. Florida,5 3 for example, the Gulf coast states ar-gued that their historic boundaries extended three leagues into theocean. The Supreme Court held that only Texas54 and Florida55

qualify for a three-league boundary in the Gulf of Mexico. In UnitedStates r'. Maine," the Atlantic coast states argued that their owner-ship rights extended beyond the marginal sea.57 The Supreme Courtreaffirmed explicit language in the SLA58 by holding that the federal

5 1. See notes 52-69 and accompanying text infra.

52. 363 U.S. 1 (1960). The United States sued Louisiana, Texas, Mississippi, Ala-bama, and Florida. The federal government claimed that it was entitled to full do-minion and power over the lands, minerals, and other natural resources in the Gulf ofMexico between the three-mile boundary line and the outer edge of the ContinentalShelf The Court noted that the Act preserved the right of a Gulf coast state to provehistoric boundaries beyond three miles. To satisfy the Act's requirements, however,the Court held that a state must prove it would have been entitled to the submergedland under the doctrine of Pollard's Lessee as Congress conceived that doctrine beforethe 1947 Califorma decision. Mere existence of such a boundary prior to the State'sadmission to the Union is insufficient. Id at 24-36.

53 363 U.S. 121 (1960). Originally five state actions were consolidated in 363U.S 1. The Supreme Court, however, reported the Florida decision separately.

54 363 U.S. at 64. Texas successfully established its historic boundary by show-ing that as an independent nation prior to statehood, Texas' boundary extended threeleagues into the Gulf of Mexico. Id at 36. Louisiana, Mississippi, and Alabamacould not maintain similar claims. Consequently, the Court held that these threestates could not extend their boundaries beyond three miles. Id at 79-82. Seegener-alr, Charney, Judicial Deference in the Submerged Lands Cases, 7 VAND. J. TRANS-NAT'L L. 383 (1973-74): Lewis, A Capsulte Historv of the Present Status of theTidelands Controversr, 3 NAT. RESOURCEs LAW. 620 (1970).

55 363 U.S. at 129. Florida showed that its Constitution of 1868, approved byCongress when Florida was readmitted to representation in Congress after the CivilWar. established a three-league boundary. Id at 123.

56 420 U.S. 515 (1975). The United States filed a complaint in 1969 against 13states Maine, New Hampshire, Massachusetts, Rhode Island, New York, NewJerse,. Delaware, Maryland, Virginia, North Carolina, South Carolina, Georgia, andFlorida Connecticut was not made a defendant, probably because the state borderson Long Island Sound, which is not part of the marginal sea. Id at 516-17.

57 Id at 517. Each of the states, excepting Florida, claimed for itself, "as succes-sor in title to certain guarantees of the Crown of England, . . . the exclusive right ofdominion and control over" all the submerged land extending to the outer edge of theContinental Shelf. Id at 518. The states argued that they "acquired dominion overthe offshore seabed prior to the adoption of the Constitution and at no time relin-quished it to the United States." Id at 519. See generally 5 GA. J. INT'L & Comp. L.580 (1975).

58. 43 U.S.C. § 1332(a) (1976). See note 45 supra.

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government controls all submerged land between the three-mileboundary line and the outer edge of the Continental Shelf.59

In the 1967 United States v. Louisiana case,6" the Supreme Courtdecided that artificial jetties could not be considered a part of theshoreline from which to measure the three-mile limit.61 The opinion,in effect, moved the state boundary line toward the mainland. In the1969 United States v. Louisiana,62 the Court held that the Texasboundary line extends three leagues from the state's modern, ratherthan historic, coastline.63 As the coastline continues to erode, theboundary line presumably moves landward,' thus benefiting the fed-eral government.

In the 1965 United States % California case,65 California assertedthat all waters and submerged land between its mainland and off-

59. 420 U.S. at 528. The Supreme Court relied on the 1947 Calfornia decision, aswell as the SLA, to support its conclusion that the United States has sovereign rightsover the seabed and subsoil underlying the ocean more than three miles from a state'scoastline. This holding has tremendous economic implications. The Court noted thatthe outer Continental Shelf yielded from 1953 to 1974 more than 3 billion barrels ofoil, 19 trillion m.c.f. of natural gas, 13 million tons of sulfur, and 4 million tons of salt.In 1973 alone, 1,081,000 barrels of oil and 8.9 billion cubic feet of natural gas wereextracted daily from the outer Continental Shelf. Id at 527. See generally 28 U. FLA.L. REv. 231 (1975).

60. 389 U.S. 155 (1967). The issue was whether Texas could measure its three-league boundary from the outer edge of artificial jetties-permanent harbor works-or whether the boundary should be measured from the state's natural coastline as itexisted when Texas entered the Union in 1845.

61. Id at 161. The Court decided the SLA provided two types of grants to thestates. The first was an unconditional grant allowing each coastal state to extend itsboundaries three geographic miles into the ocean. The second was a conditionalgrant allowing any Gulf coast state to extend its boundaries up to three leagues if thestate could prove its historic boundaries extended that far. Since Texas has an his-toric boundary extending three leagues, the Court concluded, measurement of thatboundary must be made from the state's historic coastline as it existed when Texasentered the Union. The artificial jetties were not part of the boundary when Texasentered the Union; thus, they cannot be considered part of the coastline. Id at 157-160. See generally Stone, Some 4spects of Jurisdiction over Natural Resources underthe Ocean Floor, 3 NAT. RESOURCES LAW. 155 (1970).

62. 394 U.S. 1 (1969) (Texas coastline case).63. Id at 5. Despite the holding in the 1967 Louisiana case that artificial jetties

were not a part of the coastline, the Court decided that under the SLA, Texas' coast-line must be measured from its modem, ambulatory coastline. Id This holdinggreatly favors the United States because the historic boundaries of Texas extendedfarther into the ocean than the present boundaries do.

64. Id at 6 n.7.65. 381 U.S. 139 (1965). Before 1963, the depth of the Pacific Ocean made it

impossible to drill for oil beyond three miles from the mainland. Improved drilling

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shore islands66 fall within California's control.67 The Supreme Courtdecided California owns one strip three miles wide around each is-land and one strip extending three miles from the coastline of itsmainland.68 All intervening submerged land, constituting the major-ity of the disputed area, belongs to the United States.69

The Supreme Court in the 1978 United States v. California deci-sion" inexplicably abandoned the pattern set in these recent cases ofeither directly71 or indirectly72 interpreting the SLA in favor of theUnited States.73 The Court stated that the SLA's purpose was to re-turn to the states ownership of the marginal sea.74 Since the one-mile

techniques in the early 1960's, however, revitalized interest in the exact location of thestate/federal boundary line. Id at 139.

66. Some of these islands are as far as 50 miles from California's coastline. For apictorial illustration of the islands and areas claimed by each party, see 381 U.S. at213 app.

67. Id. at 149. California argued that the SLA uses the term "inland waters" tomean those waters the state historically considered to be inland when it entered theUnion. In California's case, that would be all the waters between the outer islandsand the mainland. Id

68. The Court noted that "[slince the Act does not define the term [inland waters],we look to the legislative history." Id at 149. The Court decided legislative historyrevealed that Congress intended for the Court to define the term. Id at 150. TheCourt adopted the 24-mile closing line and semicircle test outlined in an internationalConvention. Convention on the Territorial Sea and the Contiguous Zone, openedforsignature April 29, 1958, [1964] 2 U.S.T. 1606, T.I.A.S. No. 5639, 519 U.N.T.S. 205.Congress approved the Convention in 1960, 106 CONG. REC. 11196 (1960), and thePresident ratified it in 1961, 44 DEP'T STATE BULL. 609 (1961). The Convention wentinto effect in 1964 when the requisite number of nations (22) ratified it. See generallyEreli, The Submerged Lands Act and the Geneva Convention on the Territorial Sea andthe Contiguous Zone, 41 TUL. L. REV. 555 (1966-67).

69. Id This decision was a major victory for the United States since most of thedisputed area remained within the United States' control. See Charney, Judicial Def-erence in the Submerged Lands Cases, 7 VAND. J. TRANSNAT'L L. 383 (1973-74).

70. 436 U.S. 32 (1978).71. See notes 52-64 and accompanying text supra. In each of these cases, the

Supreme Court looked to the SLA itself to find an answer.72. See notes 65-69 and accompanying text supra. In the 1965 California case, the

Supreme Court had to look outside the SLA since the Act does not define inlandwaters. Hence, the Court's holding in the case only indirectly interpreted the "inlandwaters" language in the SLA.

73. This pattern actually started in the 1947 California case when the Court de-cided that the United States controls the three-mile marginal sea off the Californiacoast. The trend continued in the 1950 Louisiana and Texas cases. See notes 42-44supra.

74. 436 U.S. at 37.

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belts clearly are in the marginal sea,75 they are the property of Cali-fornia. The federal government asserted that the Act does not applyto "any rights the United States has in lands presently and actuallyoccupied by the United States under claim of right."76 The UnitedStates maintained that it obtained a claim of right to the disputedarea when President Harry Truman used the paramount rights doc-trine to enlarge the Monument in 1949." 7

The Supreme Court rejected the federal government's position78 byciting legislative history79 to show that the claim of right cannot bebased solely on the paramount rights doctrine. If such a claim werepossible, the federal government could claim a right to the entiremarginal sea, thereby nullifying the purpose of the SLA.8° Findingno other basis to support the United States' claim,8 the Court heldfor California.

The Supreme Court failed to properly construe the claim of rightclause. Congress enacted the clause to enable the federal gqvernmentto preserve all of its installations and acquisitions in the marginalsea.82 An installation refers to any specific area used by the govern-ment for a specific purpose.83 The Channel Islands National Monu-

75. See note 12 supra.76. 436 U.S. at 38. Senator Cordon noted in debates over the SLA that the claim

of right "leaves the question of whether it is a good claim exactly where it was before.This is simply an exception by the United States of a voluntary release of its claim,whatever it is. It does not, in anywise, validate the claim or prejudice it." Hearingsbefore the Senate Comm. on Interior and Insular Affairs on S.J Res. 13, S. 294, S. 107S. 107Amend, andS.J Res. 18, 82d Cong., 1st Sess. 1322 (1953) [hereinafter cited as1953 Hearings]. The claim is simply left for eventual adjudication. Id

77. 436 U.S. at 40.78. Id at 41.79. Congress pointed out that the "exceptions spelled out [§ 1313] do not in any-

wise include any claim resting solely on the doctrine of 'paramount rights' enunciatedby the Supreme Court with respect to the Federal Government's status in the areasbeyond inland waters and mean low tide." S. REP. No. 133, 83d Cong., 1st Sess. 20(1953).

80. 436 U.S. at 41. Senator Long stated at the hearings that "I am a little bitafraid of that last clause [referring to the claim of right clause] myself, just on thetheory that the clause might be susceptible of interpretation that would complete [sic]negate this entire bill." 1953 Hearings, supra note 76.

81. 436 U.S. at 41.82. The clause was added at the suggestion of the Attorney General whose pur-

pose was to guarantee "that all installations and acquisitions of the federal govern-ment within such area [three-mile zone] belong to it." 1953 Hearings, supra note 76,at 935 (letter from Attorney General Brownell).

83. Id at 1322. Senator Cordon stated that occupancy under a claim of right was

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ment is a designated area" established by the federal government topreserve marine life and fossil formations. 5 The Monument is a fed-eral installation which should entitle the United States to a claim ofright.

Before 1949, the federal government held a general claim to thedisputed waters under the paramount rights doctrine. The 1949 Pres-idential Proclamation changed the government's general claim into aspecific claim. While the SLA extinguished general claims,8 6 Con-gress intended to keep alive any specific claims the United Statesmight have in the marginal sea.87

Legislative history clearly shows, as the Court pointed out, that aclaim based solely on the paramount rights doctrine is inadequate. 88

The Court holds, however, that a claim of right, no matter how spe-cific. is inadequate if it originated under the paramount rights doc-trine. 9 Nothing in the legislative history supports this conclusion.9"It is doubtful the federal government retains any specific claims todaythat were not originally general claims.9' Consequently, the SupremeCourt's interpretation of the SLA renders the claim of right clausevirtually meaningless.

The 1978 Calfornia holding raises a serious question about thepreservation of underwater life around the two disputed islands.92

"some sort of actual either continuous possession or possession in such a way as toindicate that the individual claims some special right there different from a vast unoc-cupied area." See 99 CONG. REC. 2619 (1953).

84 See note 16 supra.85. See notes 14-17 supra.86 See note 79 supra.87. 99 CONG. REC. 2619 (1953) (remarks of Sen. Cordon).

88 See note 79 supra.89 436 U.S. at 4 1. Although this is not the narrow holding of the case, the dissent

points out that it is, in effect, the logical implication to be drawn from the Court'sanalysis. Id at 47.

90 See 99 CONG. REc, 2619 (1953) (remarks of Sen. Holland).91 Before the federal government could establish a specific interest and occu-

pancy in an area, it most likely would have had a general interest in that area. See1i5 Hearings, supra note 76, at 1321 (remarks of Senators Kuchel and Cordon).

92. Federal regulations applicable to the monument prohibited tampering with.'any underwater growth or formation" and did not allow any person to "dig in thebottom, or in any other way injure or impair the natural beauty of the underwaterscene " 36 C.F.R. § 784 (1977). The regulations also prohibited tampering with,xrecks and regulate fishing. Since these are federal regulations, however, they onlyapply as long as the federal government has jurisdiction over the area. The SupremeCourt holding removed this jurisdiction.

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Evidence suggests that removal of the kelp will seriously jeopardizethe continued well-being of this marine sanctuary. 3 The Courtshould have eliminated the potential problem by recognizing the gov-ernment's specific claim to the area.

The Court's holding also threatens the extraordinary marine life94

found around the Dry Tortugas Islands, located off Key West, Flor-ida. A 1935 Presidential Proclamation,95 designed to protect themarine life,96 designated these islands and the waters immediatelyaround them as the Fort Jefferson National Monument. TheSupreme Court recently declared that the waters around the islandsare part of Florida's marginal sea.97 Consequently, the 1978 Calfor-nia case strongly suggests that the federal government, if challengedin court, will have to relinquish control over the waters around theFort Jefferson National Monument.

Few areas in the marginal sea are like the Fort Jefferson NationalMonument or the Channel Islands National Monument.9" There-fore, a holding for the United States would not have circumventedthe SLA's primary purpose of returning ownership rights in the mar-ginal sea to the states. Rather, it 'vould have followed the Act's claimof right clause. The Court's decision does not satisfy the purpose ofeither the 1949 Presidential Proclamation or the SLA's claim of right

93. Letter from C. Persons, Acting Regional Director of the National Park Serv-ice, to the Superintendent, Sequoia and Kings Canyon National Parks, whose juris-diction included the Monument, stressed that "there is a general agreement here [atthe Monument] that the kelp beds are essential for wildlife protection and should notbe disturbed." (July 20, 1950).

94. The waters contain several varieties of turtles, fish, and fossil formations. Let-ter from J.A. King, Secretary of the Interior, to President Harry Truman (July 2,1948).

95. Presidential Proclamation No. 2112, 49 Stat. 3430 (1935).96. When President Truman was considering expanding the Channel Islands Na-

tional Monument, a letter from the Secretary of the Interior advised the President that"similar protection was given to the extraordinary marine life in the immediate vicin-ity of the Dry Tortugas group of islands." Letter from J.A. King, Secretary of theInterior, to President Harry Truman (July 2, 1948). Also, the National Park Servicepromulgated regulations restricting fishing activity in the waters around the Monu-ment. 4 Fed. Reg. 4958 (1939).

97. United States v. Florida, 420 U.S. 531 (1975), decree entered, 425 U.S. 791(1976).

98. See 16 U.S.C. § 431 (1976).

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provision. A holding for the United States would have supportedboth these purposes.

James A Keller

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